- (1.) THIS miscellaneous appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter 'the 1988 Act') has been filed by the appellant -non claimant -owner of the vehicle (hereinafter 'the non -claimant') against the award dated 29 -5 -2013 passed by the Motor Accident Claims Tribunal, Chhabra, District Baran (hereinafter 'the Tribunal'). Thereby the Tribunal has found the respondent claimant Mangi Lal (hereinafter 'the claimant') entitled to compensation for a sum of Rs.1,16,000/ - along with interest at the rate of 6% from the date of filing of the claim petition i.e. 7 -7 -2010 till the date of payment. Liability of payment of compensation and interest has been visited upon the non -claimant owner of the vehicle alone and the insurance company has been exonerated of the liability as the Tribunal found the breach of conditions of the insurance policy by the insured.
(2.) LEARNED counsel for the non claimant has submitted that even though the non -claimant is satisfied with the quantum of compensation of Rs.1,16,000/ - plus interest thereon as detailed hereinabove, his grievance is that the insurance company has wrongly been absolved of its liability. It has been submitted that there was no clinching proof before the Tribunal that there was any breach of conditions of the insurance policy between the insurer and the insured using the vehicle in issue Jeep No.RJ -18/U - 0466 by carrying fare paying passengers. Counsel submitted that such a conclusion as sought to be drawn from the evidence of the claimant himself by the Tribunal was perverse. In the alternative counsel has submitted that in any event the High Court of Karnataka in the case of United India Insurance Co. Ltd. Vs. Keludappa [2007 ACJ 1241] has held that the mere fact that the vehicle could not be used as taxi and was so used contrary to the conditions of the insurance policy may attract punishment for the owner and driver, but it could not be a ground for exoneration of the insurance company from its liability. It was submitted that the Hon'ble Karnataka High Court held that when the insurance company in terms of its policy has covered the risk of private passengers of the vehicle, it makes little difference whether passenger travelling at the time of accident was gratuitous or fare paying. Counsel submitted that on the principle laid down by the Hon'ble High Court of Karnataka in case of Keludappa (supra) and in view of the fact that the claimant Mangi Lal was admittedly travelling in the insured vehicle and sustained injuries, this court should direct that the non claimant insurance company should also be equally liable for paying compensation to the claimant injured. The award be modified accordingly. It was then submitted that even if the insured was in breach of conditions of policy, the non claimant insurance company be directed to pay the compensation to the claimant with a right to recover the same from the insured. Mr. Mukesh Goyal, appearing on behalf of non claimant the New India Insurance company has submitted that the policy issued to the owner of the vehicle in issue Jeep No.RJ -18/U -0466 filed before the learned Tribunal as Ex.NA -2 clearly stated that the policy only covered use of the vehicle for any purpose excluding hire or reward, carriage of goods (other than samples or personal luggage), organized racing, pace making, speed testing, reliability trials, or any purpose in connection with motor trade. It is thus clear that the insured could not use the vehicle for carrying fare paying passenger i.e. for hire. Attention has been drawn to Ex.NA -1, the report of investigation prepared at the time of accident and proved before the Tribunal wherein the claimant Mangi lal had admitted that he had paid fare " , The injured claimant Mangi , " .
(3.) LAL who appeared before the Tribunal as Aw -1, stated that the fare was Rs.5/ - but because he had fallen off the vehicle in question consequent to the accident one kilometer after he boarded he could not pay the fare. Counsel submitted that in view of the proved admission of claimant Mangi Lal no matter that he belatedly sought to feebly renege therefrom in his cross examination, the exclusion clause in the policy of insurance operated and the respondent insurance company was rightly absolved from liability.;